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Ruegg & Ellsworth and the Frank Spenger Company are suing the city of Berkeley and the city’s department of planning and development for rejecting their project at 1900 Fourth St. on the grounds that the city’s decision allegedly goes against SB 35.

The companies, which own the contentious 2.2-acre parking lot on Fourth Street, proposed building a 260-unit apartment complex that would include 130 units of affordable housing. The city rejected the proposal, and on Nov. 28 the two companies, which are represented by the law firm Holland & Knight LLP, filed a suit against the city.

According to the lawsuit, the site should be subject to SB 35, which expedites the approval of housing projects that designate a specified minimum percentage of units as affordable housing.

Attorneys Jennifer Hernandez and Daniel Golub, who are representing the property developers in the case, could not be reached for comment as of press time.

Efforts to develop 1900 Fourth St. have been ongoing for more than four years.

As reported by Berkeleyside, the city first decided that the project did not qualify for expedited approval under SB 35 in June but gave the developers a chance to appeal. On Sept. 4, the project was rejected for the second time, and the city issued a letter to property owner Dana Ellsworth stating that SB 35 cannot be applied to the property without violating the state constitution because the site is a city-designated historical landmark.

The property is referred to by the Ohlone people as the West Berkeley Shellmound and considered by the Ohlone tribe to be a sacred site. Members of the Ohlone tribe and activists who support the tribe have repeatedly protested development of the site in the past.

“For the developers, it might just be a piece of land,” said Corrina Gould, co-founder of Indian People Organizing for Change and a member of the Ohlone tribe, in a 2017 article by The Daily Californian. “But for us, it is a place where we pray and honor.”

The former developer of the project, West Berkeley Investors, or WBI, pointed to maps of the area dating back to 1857 that show the site was a former marshland not conducive to habitation and largely under water.

The WBI rebutted a June 5, 2018 letter from the city saying that the proposal could not be approved. WBI threatened to pursue legal action against the city if the proposal was not approved by Sept. 4, which is the date that signals the 180th day since the proposal was submitted — the maximum number of days in which the proposal could be legally reviewed.

The WBI then returned development rights to the owners, Ruegg & Ellsworth and the Frank Spenger Company, which are now overseeing the development of the property and suing the city.

According to city spokesperson Erin Steffen, the city has received the lawsuit and is in the process of evaluating it. Steffen declined to comment further on pending litigation.